Professional Documents
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Introduction
nations and back again over time. The process however has become more complex
and more structured with each stage of human development. Currently the process of
development does not embrace the transition from hunter-gatherer to agrarian society
but the global spread of methods and means of governance. This global governance
lend themselves to further analysis with regards to the similarities and differences in
the first instance the nature and development of both constitutional judicial review
and independent regulators individually and then to use that foundation to compare
and contrast the spread of these two forms of governance. The paper will begin by
discussing the development of constitutional judicial review and comparing the two
will then focus on specific case studies concerning the development of constitutional
judicial review with a focus on Egypt and the Asian Cases (Taiwan, Mongolia, and
Korea). The discussion will then shift to look at the development of independent
regulators within governments to look at the rationale behind the formation of these
semi-independent actors and the sectors in which these actors play a dominant role.
The focus on independent regulators will also discuss the current trend for
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development in this globalizing world. Finally the nature of the spread of both
developing nations.
Historical Background
check on the power of the government in order to prevent the will of the people being
perverted by the government in power. This check however is, was, and still remains
origins of judicial review stem from the English tradition of Parliamentary Supremacy
which was thought to be the voice of the people through elected representatives.
However after World War II the re-builders of Western Europe found that there was a
need for a check on the power of the legislature (Ginsburg 2003). Therefore the idea
of constitutionalism took hold and spread from the example of the United States of
America. This spread included the principle of separation of powers and a desire to
have a legislature which was not able to remain supreme above other branches of the
power of constitutional judicial review was split into two camps. The two competing
1
Author’s Note: This reference is to the case study of Egypt which developed a constitutional court in
response to the economic difficulties suffered by the country after nationalization of private industry,
which will be discussed later in the paper.
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ideas are the American model of judicial review with the development of Kelsen
The two forms of judicial review advanced during the post World War II
spread of new democracies in Western Europe and Asia were the American model
and the Kelsen Court. The American model was based on the historical development
of the separation of powers principle in the United States Constitution and advanced a
system in which the Supreme Court (United States Supreme Court) was a co-equal
branch with the government and was involved not only in disputes as to the
constitutionality of acts of the executive and legislative branches but also dealt with
matters involving actual litigants in federal level disputes. The American model is
based on the principle that there must be a ‘case or controversy’ which means an
legislation. This is the opposite of some Kelsen Courts which will hear matters in the
United State Supreme Court has the ability to hear many cases and is not a separate
court that only hears constitutional matters while another judiciary is used for federal
cases. The American model though quite successful in the United States has been
adopted on a limited basis in new democracies; this is especially the case in Western
Europe.
The Kelsen Court, named after Hans Kelsen3, was structured around four
components which were: (1) Constitutional courts enjoy exclusive and final
jurisdiction; (2) Constitutional courts hear only matters concerning the constitution;
(3) Constitutional courts have links with but are separate from the legislature and the
2
An example of an abstract court would be the constitutional court of France.
3
Developed European constitutional review.
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judiciary; and (4) Constitutional court may review legislation in question in the
abstract without waiting for the bill to become law (Stone Sweet 2002). This
structure of constitutional court was quite popular in Europe because of the historical
nature of powerful legislative bodies as well as the desire to have a codified system of
rules to guide most of the re-built nations after the Fascist regimes that predominated
during World War II. As a result of the popularity of the Kelsen model most of
seen through the case studies that have been conducted on Egypt, Asia, and Europe.
Egypt after the nationalization of private industry during the Nasser government
(Moustafa 2003).
gained by the case study of Egypt are in the first instance where a non-democratic
government has embraced a constitutional court and secondly where the impetus for
the court was based on economic necessity. The spread of constitutional judicial
review has also been entitled the ‘judicialization of politics’ to describe the means by
which the Law is used to create an economically stable environment for investment
based on the Neo-liberal conception of encouraging private property rights, the rule of
law, and free markets without barriers to trade (Harvey 2005). In Egypt, after the
ascension of the Nasser government and nationalization of the 1970s, the economy
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was in turmoil as the ready supply of investment was limited due to the fact that
lenders were not willing to invest in Egypt if the investment was not secured in the
law. Even after the Nasser government introduced measures to again allow for
private property rights and laws to prevent the government for nationalizing
investment once again there was not a steady stream of capital. Therefore the
the nation and to bring about accountability to encourage a return of investors. After
the creation of the Supreme Constitutional Court (SCC) the court predominantly dealt
with matters concerning the taking of lands and other issues concerning the
Egypt the SCC has been able to gain a political voice in challenging actions which
infringe of the rights of Egyptians which had not been envisioned by the creators of
The first example in the Asian cases in which judicial review is brought to
Ginsburg is that they are a form of insurance (2003). This model somewhat applies to
the experience involving Taiwan, however Ginsburg suggests further that the
adoption in Taiwan of judicial review was in line with a trend within Asian
governments to modernize in line with Western Democracies that had judicial review
explain as it plays a central role in the rationale for development of such a court
maintain the acts of the government upon regime change and one method of
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guaranteeing that previous acts as well as new acts must pass the constitution of the
known as the Council of Grand Justices. The court hears exclusively matters
The next case study presented involves the introduction of judicial review in
the new democracy of Mongolia and the creation of the Tsets, or constitutional court
(Ginsburg 2003 pg 159). The creation of these courts surrounds the nascent
democracy in the region. Mongolia which was independent but heavily influenced by
the USSR prior to the fall of Communism in Eastern Europe in 1989 provided the
outcome of this influence was a creation of a constitutional court that was limited and
centralized like the European or Kelsen model of constitutional courts. The Tsets,
however have a checkered history in Mongolia concerning the use of the court as an
Party (MPRP). The MPRP when faced with a changing political climate created the
Tsets and as well limited their independence and also the ability to declare political
parties invalid. This constitutional dilemma still plagues Mongolia. However this is a
case which is a clear example of the use of judicial review and limited constitutional
The finally Asian case involves the creation of the Constitutional Court of
Korea. The development of judicial review in Korea has been a multi-stage process
involving both models of judicial review from a decentralized United States style
compromise among the political parties that ruled Korea. The allowance of limited
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judicial review was a direct result of pressure by the United States to combat the
Korean court however has been a very politically active court since the re-
establishment and has been involved in human rights issues as well as economic
From the above case studies it is evident that the rationale behind the
theory as well as the desire for economic investment. The case of Egypt provides
economic investment in a country that was finding its economy in ruin after the
nationalization of industry during the Nasser government. The Asian cases show the
spread of constitutional judicial review both as a means of catching up with the West
prosperity and individual rights (Korea). The transnational spread of judicial review
appears to be closely linked to the emergence of new democracies but can also exist
in an authoritarian regime.
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Independent Regulators
cases a sector of economic commerce or public health that in turn is a means for the
government in power to show that it is acting in the best interests of its citizens and
maintain policy goals upon regime change4. Independent regulators are historically
setup to deal with issues of public concern. Such areas of public concern can be
electricity, telephone, food standards, and prescription drug controls. These areas are
suited for the use of an independent regulator because of the autonomy of the body
from the government. The use of independent regulators has been most prevalent in
the historical development of the United States, Western Europe, and developed
nations. However, the current trend is to see the creation of independent regulators in
developing countries in order to provide currency for a new government both in the
The question remains what brought about independent regulators? The answer
requires that the government in power seek to show that the new private owners will
work in the best interests of the customers and also to allow private investors to come
into a new market with a sense of security knowing that a return to nationalization is
liberalism that has defined the current period of economic development. The trend is
to create a regulatory structure which allows for increased economic investment while
4
The definition is a conglomeration of characteristics and other qualities discussed in the relevant
literature, however the definition is not provided by one author. The relevant work would be of Gilardi
(2005 a,b), Levi-Faur (2005), and Busch et al. (2005).
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at the same time liberating the burdens of the government from previously national
industries. The shift to privatization which was characteristic of the Thatcher era in
the United Kingdom also saw the creation of many independent regulators in
The nature by which this system of regulation has spread has been compared
to a diffusion process. The most vocal supporter of this position is David Levi-Faur
America and a global scale (2005a,b). Levi-Faur uses a wonderful example to explain
actors in the street once they realize the first individual has opened the umbrella and
to determine if the other actor opened the umbrella because they felt rain or because
they saw someone else open their umbrella. Finally the suggestion is that the spread
be drawn from this process is that behavior of actors may or may not be influenced by
the acts of developed nations but that in the move to become developed similar
patterns of global governance may develop. The outcome in the view of Levi-Faur is
not limited to the internal nation state but as well can be developed at the global level.
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level. Examples of this trend have been seen in both environmental regulation and
food safety. These two trends both appear to occur through the diffusion process
asserted by Levi-Faur however this mode of policy diffusion is dissimilar in the fact
that there are not over-riding international treaties on these matters (2005a,b) (Busch
adoption of policy is seen to come through two channels. The first channel is
appear to have more integrity and secondly to adopt the best practices in an
are very similar in nature to the development of independent regulators at the nation
state level. The most important insight to be gained is that with continued
globalization and development policies once reserved for the nation state will become
the realm of global actors (Busch et al 2005). With regard to the adoption of Food
Safety standards the adoption of similar international standards would only seem
appropriate to private actors to increase the markets in which their products can be
sold and in turn reduce the costs associated with regional compliance. The example
provided is that of the World Trade Organization (WTO) which utilizes the CAC5
standards for determining food quality and safety (Post 2005). Post discusses in the
paper the need for international standards and why assortments of food standards do
not benefit the consumer. The argument then is made that a harmonized system of
independent regulation under the WTO and in light of other agreements on free trade
5
CAC is the abbreviation for Codex Alimentarius Commission which was established in 1963.
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and food regulation would benefit the economies of both developed and developing
independent regulators but to show the trend towards global regulatory schemes.
nations.
These agendas can range from privatization to maintaining the supremacy of one
political party over another. The insurance model of judicial review combined with
provide considerable substance for the use of the two forms of governance to maintain
the political agendas of parties that are no longer in power in a democratic system
judicial review is not only a means to secure the agenda of the previous government
review is not shared between the two forms of governance. As Levi-Faur has
nation state which has previously contained nationalized industries while at the same
time seeking to bring about support for a new political regime. The adoption of
6
Constitutional Judicial Review (CJR)
7
Independent Regulators (IR)
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judicial review seems to be a process based on history and as well adopted by new
democracies and nations which are not willing to have governments structured around
parliamentary supremacy.
development and political stability is that the neo-liberal state encourages stability,
recognition of private property rights, and the rule of law which in turn explains the
CONCLUSION
only increased the sense that economic development and private investment are
essential to global development. While it may be said that judicial review is a method
can only benefit private enterprise and economic development. This conclusion may
seem a bit jaded in response to the discourse on the benefits of both constitutional
judicial review and independent regulators, but I would assert that if anything has
been gained from this insight to Law, Economy and Society in a Global World is that
private actors are just as influential as governments and it may soon be that
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Works Cited
8. Majone, G., The Regulatory State and its Legitimacy Problems, in West
European Politics, Vol 22(1) January 1999.
9. Moustafa, T., Law versus the State: The Judicialization of Politics in Egypt, in
Law and Social Inquiry, 2003.
10. Post, D., Standards and Regulatory Capitalism: The Diffusion of Food Safety
Standards in Developing Countries, in The Annals of the American Academy
of Political and Social Science, Vol 598 March 2005.
11. Stone Sweet, A., Constitutional Courts and Parliamentary Democracy, in West
European Politics Vol 25(1) January 2002.
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